Mandatory review panels pushed for tort reform

With the ongoing debate over health care reform, the idea of malpractice tort reform has gotten short shrift, but some analysts are saying the time is right to address out-of-control malpractice risks by instituting a mandatory physician review panel. Others say no, that such a system would inevitably be biased in favor of the health care defendants.

Any effort to improve health care in the country must address the malpractice costs that are forcing many providers into defensive medicine, which drives up the cost of care for everyone, says Robert A. Levine, MD, former chief of neurology at Norwalk (CT) Hospital, and associate professor of medicine at Yale University in New Haven, CT.

The total cost of medical professional liability insurance in 2002 was $25.6 billion and has increased at a precipitous rate every year since. According to an American College of Obstetricians and Gynecologists (ACOG) survey, almost 70% of obstetricians have made changes to their practice due to medical liability, Levine says. A study by the Harvard School of Public Health determined that 40% of medical malpractice lawsuits filed in the United States are "without merit." A U.S. Department of Health and Human Services (HHS) study estimates the national cost of defensive medicine is more than $60 billion, or about 3% of overall medical spending.

"The excessive premiums have forced many physicians to go without malpractice insurance or to close their practice entirely," Levine says. "Physicians feel forced to practice defensive medicine, ordering unnecessary tests for fear of a lawsuit."

Despite the frivolous nature of many lawsuits, juries often award hundreds of millions of dollars to the plaintiffs, and since there is no way to predict these costs, every doctor must purchase malpractice insurance at extraordinary expense to protect themselves against lawsuits, Levine says.

"Malpractice actions in the current system do not decrease the incidence of medical negligence, they do not adequately compensate injured patients, they do not remove incompetent physicians, and they usually do not punish those guilty of negligence," Levine says. "The suits are simply a lottery system devised by attorneys, where a small number of injured patients benefit."

Levine says the time is right to consider national legislation that would require a peer panel comprised of physicians in the same field to review all malpractice cases before they could move forward.

"These physicians would have the same training as the accused physician and would be knowledgeable about the standard of practice. They would be from different geographical locales than the accused physician and would not have known that person," Levine says. "Plaintiff's attorneys and defense attorneys would still present their cases, but doing so before this physicians' panel rather than a jury would be fair and equitable."

If the physician panel determined the case had no merit, that decision could be appealed to a panel of malpractice judges, under Levine's plan. These judges would specialize in medical malpractice, and if they agreed that there was no evidence of malpractice, the plaintiff still could take the case to a jury but would then be liable for the defendant's legal expenses if the defendant prevailed.

Some states have similar review panels or a requirement for a certificate of merit, but Levine is pushing for a uniform structure that would ensure the same protection for health care providers across the board, and more protection than some of the state review panels offer.

Not so fast, says Susan Steinman, JD, director of policy at the American Association for Justice (formerly the Association of Trial Lawyers in America) in Washington, DC. The physician review panels advocated by Levine would be biased from the start, she says.

"You would have a physician on the screening panel substituting for the role of a judge in a courtroom," she says. "We would be denying a lot of plaintiffs their day in court."

Steinman says trial lawyers do not necessarily oppose a system that requires a certificate of merit before a malpractice case can proceed, but she says that procedure must be in the hands of the court rather than physicians.

"A group of physicians are going to be more inclined to side with their fellow physicians than with the patient," she says. "Even if it is not technically biased, it will be perceived that way. It will undermine confidence in the system."

Steinman says review panels established on the state level have not really worked. They slow down the process and add significant expense for both parties.

"Depending on how the screening panels work, you're trying your case once for the screening panel and again for the trial," she says. "You're paying your attorneys and your expert witnesses twice."

Any concerns about the physician panel being biased in favor of the defendant should be allayed by the fact that, under Levine's plan, the plaintiff is not barred from proceeding with the case even if the physician panel disapproves, he says. If the case truly has merit and the physician panel is acting out of bias, the plaintiff can still go to court and prove the case. The only risk is that they would be liable for court costs at that point, but that shouldn't be a concern if the plaintiff is so sure that there was malpractice, he says.

Levine says trial lawyers oppose the idea, because they win many cases in which there is "maloccurence" rather than malpractice, meaning something did go wrong and there was an adverse outcome for the patient, but the health care provider was not negligent. Sometimes bad things happen and there's no one to blame, Levine says, but in today's malpractice system, the jury will feel so much sympathy for the patient that they still find the provider liable.

"Birth injuries are the best example. There have been multiple studies showing that the overwhelming majority of cerebral palsy cases are not caused by a birth injury, yet a malpractice lawyer brings one of these poor people into court and urges them to make a decision based on an emotional response rather then the evidence," Levine says. "A review panel could make a decision based on the facts to determine if that case has merit. The malpractice lawyers don't want decisions to be based on the facts."

Levine recalls being sued for malpractice, along with one of his partners and another physician, and sitting through a six-week trial before the jury found in their favor after a 20-minute deliberation. After the trial, the jurors went to the judge and said the case never should have been brought to trial.

"It cost our insurer $350,000 to defend us. That $350,000 is reflected in all the premiums of all insured doctors. Even though we won the case, we wound up losing, and the medical profession wound up losing," Levine says. "I think doctors would be much more cooperative with the malpractice process if they thought they were getting a fair shake."